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Watchdog or Lapdog? New GOP Court Filings Test the Independence and Legitimacy of the NC Supreme Court | Opinion

Credit: NC Policy Watch

By Rob Schofield

There are many factors that go into building and sustaining a strong and healthy democracy: free, clean and transparently funded elections; inclusive suffrage; freedom of speech and association; an independent news media; predictable and reliable law enforcement; and an absence of widespread corruption.

Oh, and at least one more: a strong and independent judiciary that prioritizes protecting citizen rights.

Across the globe – particularly in nations where democracy is fragile or struggling – the stories of corrupt and/or compromised judiciaries are sadly familiar:

  • high courts that operate as little more than rubber stamps for the powers that be;
  • judges who float between the political and judicial realms;
  • judicial systems in which precedent and trial court findings of fact are largely ignored or dismissed as inconvenient distractions.

Happily, for most of its history, neither the independence nor the legitimacy of the judiciary in this country have been called into question that often.

This isn’t to say that American judges haven’t handed down their share of dreadful rulings. Think Dred Scott, Plessy v. Ferguson and Korematsu. But when it comes to the kind of blatant corruption and widespread public cynicism one sees in autocracies like Russia and China — in which the “the fix” is almost invariably in for most important judicial rulings — the U.S. has generally done a creditable job of drawing some bright and important lines. This is true even at the state level, where many judges face the burden of running for office.

Sadly, however, in recent years, this important and exceptional state of affairs (along with public confidence in the courts) has waned.

Because of a relentless, well-funded and decades-long campaign by the American political right, many corners of the U.S. judiciary have been weakened and transformed in recent decades, as strong and independent judges committed to the protection of individual rights have been gradually replaced with agenda-driven politicians.

And now, thanks to a pair of motions filed by Republican legislators with the North Carolina Supreme Court last week, we will soon find out just how far things have fallen.

At issue are a pair of deeply researched and carefully crafted landmark rulings handed down by the court in December on the issues of Voter ID and gerrymandering.

In Holmes v Moore, the court upheld a lower court ruling that a 2018 voter ID law was unlawfully “motivated by a racially discriminatory purpose.”

In Harper v. Hall, the court ruled that the partisan gerrymandering in which GOP legislators engaged in drawing congressional and legislative maps violated the state constitution.

On Jan. 20, however, just 35 days after they were handed down, the GOP lawmakers asked the court to reconsider these rulings and reverse itself.

The notion of parties to two such important and momentous cases asking a high court to reverse itself just a few weeks after the rulings were handed down is a fairly stunning development. While it’s true that the composition of the court shifted to the political right as a result of the November election, the concepts of judicial precedent and stare decisis would ordinarily render such demands all but unthinkable. It took the U.S. Supreme Court 56 years to overrule Plessy v. Ferguson’s noxious “separate but equal” doctrine. Roe v. Wade lasted 49 years.

Not surprisingly, the civil rights and good government advocates who argued in favor of the rulings were outraged by the brazen GOP move.

“Enough,” said Bob Phillips of Common Cause regarding the gerrymandering case. “Politicians in the legislature should stop wasting taxpayers’ money in pursuit of unconstitutional power grabs. It’s time for lawmakers to follow the law.”

“We’re disappointed that lawmakers would choose to waste time rehashing arguments that were rejected by the Court mere weeks ago rather than doing the work of passing a voter photo ID that passes constitutional muster,” said Jeff Loperfido, interim chief counsel of voting rights at the Southern Coalition for Social Justice.

Republicans Trey Allen and Richard Dietz were elected in the Nov. 8 election.

As they have been in so many other aspects of the battle for control of the judiciary in recent years, however, Republican lawmakers are unabashed. Indeed, having spent millions of dollars to place the son of one of the key architects of both challenged laws on the high court (Justice Phil Berger, Jr.) along with a former senator who voted for the Voter ID law (Justice Tamara Barringer), the notion that they would feel any reluctance now to keep pushing their hardball, winning-is-the-only-thing approach to constitutional jurisprudence must, to them, seem almost quaint.

The bottom line: As candidates last fall, the court’s two new Republican justices – Richard Dietz and Trey Allen – promised to be nonpartisan, objective and respectful of precedent. If in this situation they stick to that stance, they will help strike a powerful and desperately needed blow for judicial independence and legitimacy. If, however, they fail and accede to the legislators’ outrageous demands, they will have helped cement their court’s descent from a watchdog for the people into a partisan lapdog for the powerful.